UPSC Mains Daily Answer Writing (22-11-2022) - GS 2

UPSC Mains Daily Answer Writing

Questions

Q1. High courts may be lower in the hierarchy than the Supreme court but are not subordinate in terms of their duty to render justice to Indian citizens. Discuss the significance of judicial federalism in light of the general lack of dissent of the Supreme court in recent years on issues that have serious political ramifications. (250  words)   15 marks

Q2. The real reason for the dismal performance of local institutions is the contradiction between their responsibility and authority. Elaborate.                     (150 words)   10 marks


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Model Solutions

Q1. High courts may be lower in the hierarchy than the Supreme court but are not subordinate in terms of their duty to render justice to Indian citizens. Discuss the significance of judicial federalism in light of the general lack of dissent of the Supreme court in recent years on issues that have serious political ramifications. (250 words) 15 marks

Model Structure
Introduction:

  • India has an integrated judicial system with the Supreme court on the top followed by the high court, district courts and subordinate courts.

Main Body:

  • Though high courts are placed lower in the hierarchy, they are not subordinate to Supreme Court because of the following reasons:
    • The power of the High Court under Article 226 to issue writs is wider than the Supreme Court’s under Article 32.
    • High court judges cannot be removed by the Supreme court, Parliament has this power.
  • In a recent incident where SC transferred all oxygen supply-related cases in various High Courts to itself, the question of judicial federalism has come forward. Judicial federalism refers to the separation of judicial authority between federal courts and state courts.
  • The significance of judicial federalism in light of the general lack of dissent of the Supreme court:
    • Article 139A allows the Supreme court to transfer cases from the high court to itself only under exceptional circumstances.
      • However, in recent times it has been used frequently.
    • In the interest of Justice: Judicial Federalism prevents the development of nexus between judiciary and government.
      • Experts opine that at a time SC judges seating close to power entre are often influenced by narratives of government and also take a pro-government stand for quid pro quo.
      • Taking post-retirement work such as a seat in Rajya Sabha proves this viewpoint.
    • During the nexus between courts and political executives, justice for the common people dies a silent death.
      • For example, During Covid-19, various high courts have criticized the central government's planning and execution, as against the relative silence of SC.
      • The case in point is SC's stay on Delhi HC contempt proceeding against the centre.
    • Need for diversity instead of uniformity: Multiple high courts ensure a diversity of opinion and interpretation; this enriches the process of justice.
      • For example, public health and hospitals come under the State List, and the respective High Courts have been dealing with specific challenges at the regional level.
      • It did not warrant any uniform guideline from the SC.
    • Closer to the people: The SC itself has said that the High Courts have a significant advantage in winning the confidence of the people (L. Chandra Kumar case 1997).
    • Writ Jurisdiction: writ jurisdiction of the High court under Article 226 is wider than the Supreme court under Article 32,
      • Therefore, they are more suited to provide immediate relief in many cases.
  • Way forward:
    • Learning from US courts: The U.S. Supreme Court reviews only a few cases from state courts.
      • It ensures autonomy in the application of federal law for the State courts.
    • High courts of various states have acted with judicial responsibility during the covid-19 crisis, this trend needs to be encouraged by SC.

Conclusion:

  • Thus, in the case of Judicial Federalism, autonomy and not uniformity should be the principle, and decentralization and not centrism should be the rule.
  • This will be in the long-term interest of justice and uphold the constitutional status of both courts.

Q2. The real reason for the dismal performance of local institutions is the contradiction between their responsibility and authority. Elaborate. (150 words) 10 marks

Model Structure
Introduction:

  • Local institutions have made achievements like the empowerment of women, and political representation at the grass-roots level.
  • However, their dismal performance in the planning, and execution of schemes has raised several questions on the contradiction between their responsibilities and authority.

Main Body:

  • The responsibilities given to local institutions are categorized into compulsory and voluntary provisions :
    • Regulatory responsibility: Various civic functions are enlisted in XIth and XIIth schedules such as-
      • Giving permission for construction activity, regulation of markets, agriculture, industries, land development etc.
    • Infrastructural responsibility: Rural electrification, building and maintenance of roads and other means of communications, sewage, piped water etc.
      • Planning and development through institutions like the District Planning Committee under Article-243ZD.
    • Social responsibility: Grassroots development by giving voice to local demands, these institutions have responsibilities to empower the locals and welfare of weaker sections.
      • Example: Poverty alleviation programme, women and child development, social welfare etc.
    • Financial responsibility: Raise own revenue through the power of local taxation for fulfilling above functions.
  • The contradictions between responsibilities and authoritative powers given to local institutions are discussed below:
    • Failure to devolve functions: Local institutions lack the power to execute functions like health and education because these functions were never devolved by the state government.
      • For example, state water boards should have been controlled by local institutions that understand local water problems in a better way.
    • Minimum fiscal decentralization: Local institutions are not given adequate power to levy and collect taxes, fees, duties, or tolls.
      • For Example, local government expenditure as a percentage of total public sector expenditure is only 7%.
    • Issues related to functions: Weak and inefficient district planning committees.
      • Like Gujrat coupled with the politicization of local institutions has impacted the planning and development power of these institutions.
    • Absence of human resources policy: Many states do not have the power to appoint their staff due to missing staff rules which are devolved by state legislature only.
    • Challenge from parastatals - Further delegations of powers to parastatals.
      • Like in Smart Cities Mission the urban local institutions are sidelined by delegating powers of these institutions to the Chief executive officer of the special purpose vehicle of the mission.
    • Bureaucratic interference while performing the roles and responsibilities.

Conclusion:

  • There is a need for broadening and deepening the revenue base, devolution of function to local institutions, more autonomy and focus on functionality.
  • This would ensure the true implementation of Article 40 of the constitution and will balance the responsibilities of the authorities of local institutions.
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